ESTATE OF ANTHONY DASARO, DECEASED et al v. COUNTY OF MONMOUTH et al

Filing 22

OPINION FILED. Signed by Judge Peter G. Sheridan on 9/30/2015. (kas, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ESTATE OF ANTHONY DASARO,
et at.,
Civil Action No. 14-7773 (PGS)
Plaintiff,
v.

OPINION

CNTY. OF MONMOUTH, et al.,
Defendants.

SHERIDAN, DISTRICT JUDGE

This matter comes before the Court on Defendant Correct Care Solution’s (“CCS”) hybrid
Motion to Dismiss/for Summary Judgment seeking to dismiss Plaintiff Rosetta Dasaro’s
(“Plaintiff’) claims against it. (ECF No. 8.) Plaintiff has opposed the Motion (ECF No. 13) and
has also filed a Motion for Leave to File a Late Notice of Tort Claim (ECF No. 11). On September
29, 2015, the Court conducted oral argument.

Based on the following and for the reasons

expressed herein, Plaintiffs motion is GRANTED and Defendant’s motion is GRANTED in part.
I. BACKGROUND
Plaintiff is the administrator of the Estate of Anthony Dasaro. Plaintiffs husband, Anthony
Dasaro (“Decedent”), was an inmate incarcerated at Monmouth County Correctional Institution
(“MCCI”) from April 28, 2014 through May 3, 2014. According to the Complaint, prior to his
arrest, Decedent was prescribed various medications for bi-polar manic depressive disorder.
(Compl.

¶ 16.)

Also according to the Complaint, at the time of Decedent’s arrest and incarceration,

all of his anti-depressant medications were confiscated and he was not given any of his medication

for at least four (4) days prior to his death. (Id. at
suicide by hanging while at MCCI. (Id. at

¶

17.) On May 3, 2014, Decedent committed

¶ 20.)

Only the first count of the Complaint alleges claims against Defendant CCS. Those
allegations are as follows:
Based upon information and belief, defendant, Correct Care
Solutions, LLC, performed medical services for defendants,
Monnouth County and Monmouth County Correctional Institution,
including, but not limited to, taking a medical history, examining
and/or evaluating the medical condition of its inmates, including the
decedent, Anthony Dasaro.

Based upon information and belief, defendant, Correct Care
Solutions, LLC, failed to take a proper history from the decedent,
Anthony Dasaro; failed to perform a proper evaluation of the
decedent, Anthony Dasaro; failed to administer the decedent,
Anthony Dasaro’s, anti-depressant medication, resulting in Mr.
Dasaro’s death.

Based upon information and belief, the defendants herein were
aware of the decedent’s risk of committing suicide.
Furthermore, Mr. Dasaro was denied necessary medical treatment
and medication by the defendants herein following his incarceration.
Thereafter, the decedent’s family was informed that the decedent,
Anthony Dasaro, was killed as a result of a selfhanging.
That the aforementioned occurrence was caused as a result of the
carelessness, negligence and recklessness of the defendants herein;
that the defendants, their agents, servants and/or employees failed to
take a proper history of the decedent’s medical history; that the
defendants, their agents, servants and/or employees failed to
administer the decedent’s anti-depressant medication; that the
defendants, their agents, servants and/or employees knew or should
have known of the risk that decedent had to commit suicide; that the
defendants, agents, servants and/or employees failed to properly
evaluate the decedent’s medical condition; that the defendants, their
agents, servants and/or employees failed to take proper precautions
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to prevent the decedent from committing suicide; that the
defendants, their agents, servants and/or employees allowed and
permitted the decedent access to various instruments and/or objects,
which allowed him to commit suicide.
As a direct and proximate result of the acts of the defendants, their
servants, agents and/or employees herein, decedent, Anthony
Dasaro, was caused to experience and sustain severe conscious pain
and suffering, mental suffering, anguish, psychological and
emotional distress, death, loss of income and deprivation of his
physical liberty, deprivation of his constitutional and civil rights
under the United States and New Jersey State Constitutions.
That as a direct result of the acts of the defendants, their agents,
servants, an/or [sic] employees, decedent, Anthony Dasaro,
sustained damage pursuant to Survivor’s Act N.J.S.A. 2A-15-3 and
Wrongful Death Act N.J.S.A. 2A:3 1-1-5.
(Compl.

¶J 2 1-30.)

II. DISCUSSION
A. Plaintiff’s Motion for Leave to File a Late Notice of Tort Claim

On February 19, 2015, Plaintiff filed a Motion for Leave to File a Late Notice of Tort Claim
upon Defendant CCS. (ECF No. 11.)
The New Jersey Tort Claims Act (the “Tort Claims Act”) states that “[n]o action shall be
brought against a public entity or public employee under [the Tort Claims Act] unless the claim
upon which it is based shall have been presented in accordance with the procedures set forth in
this Chapter.” N.J.

STAT. Ar.l11.

§ 59:8-3. Specifically, a claimant must sign and file a notice of

tort claim (a “Notice of Claim”) with the public entity within 90 days from accrual of the cause of
action. Id. at 59:8-8.6. After the Notice of Claim is filed, a plaintiff must wait six months before
filing suit against the public entity or employee in an appropriate court. Id.
N.J.

STAT. ANI’4.

§ 59:8-9 establishes an exception to the requirement that a claimant file a

Notice of Claim within 90 days from the date of accrual. Section 59:8-9 “allows a court to extend

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the notice period up to one year if the public entity or employee would not be ‘substantially
prejudiced’ by the delay and the claimant shows ‘extraordinary circumstances for his failure to file
notice’ within the proper time period.” Rolax v. Whitman, 53 F. Appx 635, 638 (3d Cir. 2002)
(citing N.J. STAT. ANN. 5 9-8:9).
The term “extraordinary circumstances” is not defined in the Tort Claims Act and the
existence of extraordinary circumstances must be determined by the courts on a case-by-case basis.
S.F. v. Collier High Sch., 725 A.2d 1142, 1148 (N.J. Super. Ct. App. Div. 1999). Ignorance of the
law or the Tort Claims Act’s 90 day notice requirement, without more, do not qualify as
extraordinary circumstances justifying a delay in filing a Notice of Claim.

Force/la v. City of

Ocean City, 70 F. Supp. 2d 512, 517 (D.N.J. 1999).
In Lowe v. Zarghami, 731 A.2d 14 (1999), the New Jersey Supreme Court provided further
guidance on the issue of extraordinary circumstances.

The Lowe case involved a medical

malpractice claim against a clinical professor, employed by a state university, who was performing
surgery at a private hospital. Id. Finding that extraordinary circumstances were present and
permitting the late notice, the court held that:
[a]lthough the exact identity of the tortfeasor [jwas known, his status
as a public employee was obscured by his apparent status as a
private physician. Plaintiffs failure to file a notice of claim arose not
from any lack of diligence; to the contrary, plaintiff filed her claim
within the two-year limitation period applicable to malpractice
claims against a private physician. What is unusual in this case. is
that unlike most cases involving public entities and public
employees, the defendant-doctors were performing tasks associated
generally with private practice and not public service.
. .

The notice provisions of the Tort Claims Act were not intended as a
trap for the unwary. Generally, we examine more carefully cases in
which permission to file a late claim has been denied than those in
which it has been granted, to the end that wherever possible cases
may be heard on their merits, and any doubts which may exist should
be resolved in favor of the application. Not any one factor
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constitutes “sufficient reasons,” but courts consider a combination
of factors. Likewise, because “extraordinary circumstances” is an
imprecise standard, each case will depend on its own circumstances.
Id. at 26-27 (internal citations and quotations omitted).

As the New Jersey Supreme Court did in Lowe, the Court finds that Plaintiff has shown
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extraordinary circumstances. Plaintiff timely filed Notices of Claim with the Monmouth County
Defendants. so she was certainly aware of her obligation to do so. Though CCS was providing
medical care to prisoners at Monmouth County Correctional Institution, its status as a public entity
was certainly not clear.

In fact, an affidavit provided by CCS’s own employee specifically

identifies it as a private corporation. (Pl.’s Motion, Ex. B, Affidavit of Melanie Volker ¶ 6, ECF
No. 11-5.) Given the lack of clarity as to CCS’s status as a public entity, the Court finds that
Plaintiff has shown extraordinary circumstances for failing to timely serve it with a Notice of
Claim. Moreover, CCS will not suffer any prejudice if the Court allows the late filing because it
has been aware of facts forming the basis of this Complaint since the date of the incident and the
County Defendants have also alleged cross claims for contribution and indemnification against it.
Based on the foregoing, the Court will grant Plaintiffs Motion for Leave to File a Late
Notice of Tort Claim.
B. Defendant’s Motion to Dismiss and/or Summary Judgment
1. Legal Standards

On a motion to dismiss for failure to state a claim pursuant to FED. R. Civ. P. 1 2(b)(6), the
Court is required to accept as true all allegations in the Complaint and all reasonable inferences
that can be drawn therefrom, and to view them in the light most favorable to the non-moving party.

Defendant does not dispute that Plaintiffs motion was filed within one year of the date of
accrual.
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See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). ‘To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.” Ashcroji v, Iqbal, 556 U.S. 662, 678 (2009) (quoting
Be//At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, “[tihe pleader is required to set
forth sufficient information to outline the elements of his claim or to permit inferences to be drawn
that these elements exist.” Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir. 1993). “While a
complaint attacked by a Rule 1 2(b)(6) motion to dismiss does not need detailed factual allegations,
a plaintiffs obligation to provide the grounds of his entitle[mentl to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do....
Factual allegations must be enough to raise a right to relief above the speculative level

...

on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twomh/y,
550 U.S. at 555 (internal citations and quotations omitted). Moreover, although a court will accept
well-pleaded allegations as true for the purposes of the motion, it will not accept bald assertions,
unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form
of factual allegations. Iqba/, 556 U.S. at 678—79; see also Morse v. Lower Merion School District,
132 F.3d 902, 906 (3d Cir. 1997). Nevertheless, a complaint should be dismissed only if the wellpleaded alleged facts, taken as true, fail to state a claim. See In re Warjarin Sodium, 214 F.3d 395,
397—98 (3d Cir. 2000).
Summary judgment is appropriate under FED. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp.

V.

Catrett, 477 U.S. 317, 322-

23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non
movant, and it is material if, under the substantive law, it would affect the outcome of the suit.

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Disputes over irrelevant or

unnecessary facts will not preclude a grant of summary judgment. Id. “In considering a motion
for summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all
justifiable inferences are to be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
carmot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). To do so, the non-moving party must “go
beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories,
and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324. In other words, the non-moving party must “do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586, 106 5. Ct. 1348, 89 L. Ed. 2d 538 (1986). “[U]nsupported
allegations.

.

.

and pleadings are insufficient to repel summary judgment.” Schoch v. First Fidelity

Bancorp., 912 F.2d 654, 657 (3d Cir. 1990); see also FED. R. Civ. P. 56(e) (requiring nonmoving
party to ‘set forth specific facts showing that there is a genuine issue for trial.”). Moreover, only
disputes over facts that might affect the outcome of the lawsuit under governing law will preclude
the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a court determines, “after
drawing all inferences in favor of [the non-moving party], and making all credibility

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determinations in his favor

—

that no reasonable jury could find for him, summary judgment is

appropriate.” Alveras v. Tacopina, 226 F. App’x 222, 227 (3d Cir. 2007).
2. Analysis
a. Negligence Claim
Defendant CCS seeks dismissal of the state negligence claim against it based on Plaintiffs
failure to serve a Notice of Claim. As discussed above, the Court will grant Plaintiffs Motion for
Leave to File a Late Notice of Claim, so that basis for dismissal is moot.

With regard to

Defendant’s Motion for Summary Judgment on the negligence claim, the Court finds at this early
juncture, before Defendant CCS has filed an answer and before the parties have engaged in
discovery, said motion is premature and will be denied without prejudice. See FED. R. Civ. P.
56(d); Networld Commc’n v. Croatia Airlines, 2015 WL 3461030, at *7 (D.N.J. June 1, 2015)
(“Because discovery is not yet complete, Plaintiffs motion for partial summary judgment

...

[isj

2
denied.”).
b. Section 1983 Claims

As discussed above, Count One appears to be the only count which alleges claims against
Defendant CCS. The Third Circuit has stated the following with regard to Section 1983 claims
against entities such as CCS:
[CC SI carmot be held responsible for the acts of its employees under
a theory of respondeat superior or vicarious liability. In order for
2

The Court also notes that Defendant’s Motion for Summary Judgment is subject to dismissal for
failure to comply with L. Civ. R. 56.1. Specifically, L. Civ. R. 56.1(a) requires that ‘[o]n motions
for summary judgment, the movant shall furnish a statement which sets forth material facts as to
which there does not exist a genuine issue, in separately numbered paragraphs citing to the
affidavits and other documents submitted in support of the motion.. Each statement of material
facts shall be a separate document (not part of a brief) and shall not contain legal argument or
conclusions of law.” Defendant failed to submit its Statement of Material Facts as a separate
document.
.

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[CCS] to be liable, [Plaintiff] must provide evidence that there was
a relevant [CCS] policy or custom, and that the policy caused the
constitutional violation they allege.
Not all state action rises to the level of a custom or policy. A policy
is made when a decisionmaker possessing final authority to establish
municipal policy with respect to the action issues a final
proclamation, policy or edict. A custom is an act that has not been
formally approved by an appropriate decisionmaker, but that is so
widespread as to have the force of law.
There are three situations where acts of a government employee may
be deemed to be the result of a policy or custom of the governmental
entity for whom the employee works, thereby rendering the entity
liable under § 1983. The first is where the appropriate officer or
entity promulgates a generally applicable statement of policy and
the subsequent act complained of is simply an implementation of
that policy. The second occurs where no rule has been announced
as policy but federal law has been violated by an act of the
policymaker itself. Finally, a policy or custom may also exist where
the policymaker has failed to act affirmatively at all, though the need
to take some action to control the agents of the government is so
obvious, and the inadequacy of existing practice so likely to result
in the violation of constitutional rights, that the policymaker can
reasonably be said to have been deliberately indifferent to the need.
Natale v Camden dy Corr. Facilily, 318 F.3d 575, 583-84 (3d Cir. 2003) (internal citations

omitted).

See also Lopez v. Corr. Med. Servs., Inc., 499 F. App’x 142, 147 (3d Cir. 2012)

(“Because CMS cannot be held responsible for the acts of its employees under a theory of
respondeat superior in a

§ 1983 action, it too can only be held liable on the basis of some policy it

had that caused the alleged violation of Lopez’s Eighth Amendment rights”); Velasquez v. Hayinan,
546 F. App’x 94, 98 (3d Cir. 2013) (“But respondeat superior liability cannot attach to C.M.S. and
St. Francis for the acts of their employees. Rather, Velasquez needed to show that they had policies
or customs of denying necessary medical care”) (internal citation omitted); Tremper v. Correct
Care Sol., No. 13-3626, 2014 WL 320338, at *2 (D.N.J. Jan. 29, 2014) C’For Correct Care
Solutions to be found liable under

§ 1983, Plaintiff must assert in the Complaint facts showing that
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Correct Care Solutions had a relevant policy or custom, and that this policy or custom caused the
alleged constitutional violation”).
As correctly argued by Defendant, Plaintiff’s Complaint does not allege any facts regarding
policy or custom against CCS. Rather, the allegations all relate to failures or mistakes committed
by individuals employed by CCS. Because CCS cannot be held liable on a theory of respondeat
superior and there are no allegations regarding custom or policy, the Section 1983 claims against
3
Defendant CCS must be dismissed without prejudice. Should Plaintiff wish to address these
deficiencies, she must file a motion to amend the complaint which complies with all appropriate
rules.
III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Leave to File a Late Notice of Tort Claim
is granted. Defendant CCS’s Motion to Dismiss is granted with regard to Plaintiff’s Section 1983
claims and New Jersey constitutional claims. Defendant CCS’s Motion for Summary Judgment
regarding the negligence claim is denied. An appropriate order follows.
Dated:

e /A1L

Peter G. Sheridan, U.S.D.J.

Because respondeat superior liability is not permitted under § 1983, and because New Jersey
courts interpret the New Jersey Civil Rights Act as analogous to § 1983, the New Jersey
constitution claims against CCS will also be dismissed. Ingram v. Twp. of Deptford, 911 F. Supp.
2d 289, 298 (D.N.J. 2012) (“respondeat superior liability is not permitted for claims under the New
Jersey Constitution and the NJCRA”) (collecting cases); Vallone v. Twp. ofHolmdel Police Dep’t,
No. A-1452-12T3, 2014 WL 4472701, at *7 (N.J. Super. Ct. App. Div. Sept. 12, 20l4)( “In any
event, a municipality cannot be held liable in a civil rights action under a theory of respondeat
superior for an injury inflicted solely by an employee or agent”).
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